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Monday, August 17, 2020

Scholars' letter on Harris eligibility


Posted by Howard Wasserman on August 17, 2020 at 04:31 PM in Constitutional thoughts, Howard Wasserman | Permalink


Not to belabor the obvious, in response to the ever-anonymous El roam, but the opinion from which they quote is a dissent. Dissents are not the law, as all first year law students know.

A question: wasn't the appalling Andrew Jackson, so beloved of President Trump, born to two non-citizen Irish immigrants approximately two years after their arrival in this country?

Racism is the only explanation I can come up with for insisting that Senator Harris is not a citizen qualified to be president. Do those who are trying to make this meritless argument realize that they are firmly planting themselves on the side of the majority in the unspeakable decision in Scott v. Sandford? They are moreover ignoring the fact that the majority was explicitly overturned in Section I of the Fourteenth Amendment.

Posted by: Ellen Wertheimer | Aug 18, 2020 10:35:04 AM

Important issue. Many complications here. But, that letter, and with all due respect, doesn't deal with the dissenting opinion in US v. Wong kim ark. As example, when dealing with the common law, the letter rely on English tradition then, yet, the dissenting refutes it concerning citizenship. As matter of principle by the way, the common law, is not adopted automatically whene Congress has expressed his intent to replace the rule or custom. I quote the ninth circuit for example, in Baldwin v. US:

“the common law . . . ought not to be deemed repealed, unless the language of a statute be clear and explicit for this purpose.” Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co., 464 U.S. 30, 35 (1983)"



And to the dissenting in Wong, I quote in this regard:

" Obviously, where the constitution deals with common-law rights and uses common-law phraseology, its language should be read in the light of the common law; but when the question arises as to what constitutes citizenship of the nation, involving, as it does,international relations, and political as contradistinguished from civil status, international principles must be considered; and, unless the municipal law of England appears to have been affirmatively accepted, it cannot be allowed to control in the matter of construction."


Posted by: El roam | Aug 17, 2020 6:40:23 PM

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